Following Kevin McCarthy’s ouster as Speaker of the House this week, there is considerable uncertainty over who will replace him. Some far-right Republicans have suggested that former President Donald Trump should throw his proverbial MAGA-hat in the ring. In the shadow of recent debates over whether Trump is disqualified from being president under Section Three of the 14th Amendment, the possibility of a Speaker Trump might help settle one of the core disputes of the 2024 presidential election.
Passed in the wake of the Civil War, Section Three — sometimes called the Insurrection Clause — states that “[n]o person shall be a Senator or Representative in Congress … or hold any office, civil or military, under the United States … who … shall have engaged in insurrection or rebellion … or given aid and comfort to the enemies thereof.” The Insurrection Clause was designed to decapitate Southern leadership and ensure that the Union’s victory on the battlefield would not be lost in the halls of Congress once Southern states were re-admitted to the Union.
In recent months, a Republican candidate, Democratic politicians and legal academics have all questioned whether the Insurrection Clause disqualifies Trump from being re-elected president based on his involvement in the Jan. 6 riot at the Capitol.
Article I, Section Two of the Constitution provides that “the House of Representatives shall ch[oo]se their Speaker and other officers.” Here, the textual connection between the Speaker and “other offices” strongly suggests that the Speaker is an officer of the United States. Otherwise, the word “other” is potentially contradictory.
Thus, whether Trump is disqualified from being Speaker presents the question of whether his involvement in the Jan. 6 riot is covered by the Insurrection Clause. If Trump were to pursue the Speakership, the House’s decisive rejection of his candidacy based on the Insurrection Clause might very well move the needle in lower court cases challenging his candidacy (or, in Secretary of State offices, deciding whether his name should appear on the ballot). Moreover, it might put a thumb on the scale when it comes to ascertaining whether Trump could become president in January 2025.
To be sure, there are numerous reasons why the House might reject Trump as Speaker. For starters, there is a separate debate over whether the Speaker must be an elected representative. Indeed, a non-member as Speaker is unprecedented in the House’s history. Setting that distinct qualification question aside, Democrats — and even many moderate Republicans — would be loath to have Trump as Speaker and would vote against him on the merits. And when confronted with mixed motives in the legislative setting, courts have frequently thrown up their hands in frustration.
Ultimately, we should not count on the Supreme Court saving us from a second Trump administration. The court will most likely wave its hands at the so-called “passive virtues” of constitutional law and conclude that the Insurrection Clause presents a non-justiciable political question or that the plaintiff lacks standing to challenge Trump’s qualifications. In short, the court will probably punt on the merits of whether Trump is disqualified from the presidency.
But as the debate over the Insurrection Clause moves from the pages of law review articles to a more contested public sphere, it would be ideal if the question were decided sooner rather than later. If the specter of a Speaker Trump helps to resolve that question in one house of Congress in October 2023, that will make the question all the easier to answer moving forward elsewhere.
Travis Crum, associate professor of law at Washington University in St. Louis, served as law clerk to Justices Anthony Kennedy and John Paul Stevens on the U.S. Supreme Court.